' S. IBNI ALI, J.---This constitutional petition is directed against the order of Election Tribunal, District Bannu dated 13-2-1990, who while accepting the petition of respondent No,2 Inayatur Rahman, declared him as returned candidate from Ward No,10, Municipal Committee, Bannu, in place of Qamar Ali unseated, by drawing of lot as the votes of both the petitioner and the respondent were equal.
2. Inayatur Rahman respondent contested election from Ward No,10 of Municipal Committee, Bannu, against Qamar Ali Khan, petitioner, and a few others in which Qamar Ali Khan was declared successful by securing 101 votes (including 16 challenged votes which were declared valid) and the respondent No,2 Inayatur Rahman secured 89 votes, including four challenged votes. The challenged votes were kept separate by the Presiding Officer in accordance with the Rules and the lists of the challenged votes were prepared in form IX and these were sealed in separate packets.
3. Inayatur Rahman, respondent No,2, filed an Election Petition against the petitioner on three grounds namely,
(i) that 16 challenged votes have been counted in favour of the petitioner and four in favour of respondent No,2, the voters of such votes could not cast their votes in ward No,10,
(ii) that the petitioner was an office-bearer of Pakistan Peoples Party, Bannu, and was working as General Secretary of that District, and
(iii) that the petitioner used flag, manifesto and party symbol in his election campaign.
4. The petitioner contested the election petition by filing written statement.
' The pleadings of the parties gave rise to the framing of the following issues
(1) Did the Presiding Officer remain partial in favour of respondent No,3 and declare him successful candidate on the basis of counting challenged votes in his favour?
(2) Did respondent No,3 use political slogans during the election campaign to influence the voters?
(3) Relief.
5. Respondent No,2 produced two witnesses in his favour beside appearing as his own witness. He produced Maqbool Shah, Reader to E.A.C., Bannu, who produced the bag (containing election material). The statement of Hamdillah Jan, who was the Presiding Officer of Ward No,10, was also recorded, who admitted that 16 challenged votes were found valid in favour of the petitioner and four challenged votes in favour of respondent No,2. The petitioner appeared as his own witness and also produced Razaullah Khan as R.W.2.
6. The Election Tribunal while deciding issue No,1 only, came to the conclusion that as the Presiding Officer had kept the challenged votes in separate packet and did not put them in the ballot box, therefore, the secrecy of the ballot had been violated and he declared 16 challenged votes of the petitioner and four challenged votes of respondent No,2 as invalid and by excluding the same from the count, thus reducing the votes of the petitioner and of the respondent to equal number i.e, each candidate having 85 votes in number, and by drawing of lots, declared respondent No,2 elected and the petitioner was unseated.
7. We have heard the learned counsel for the petitioner, the learned counsel for respondent No,2 and also the learned Advocate-General for respondent No,1 and have perused the record.
8. The learned counsel for the petitioner submitted that according to the rules, the Presiding Officer was supposed to separate the challenged votes by preparing a list of the names of the voters and the challenged votes were required under the law to have been sealed in a separate packet. He submitted that the Presiding Officer had committed illegality by counting the challenged votes in favour of respondent No,2. He also tried to convince us that this was not the ground of respondent No,2 before the Election Tribunal and in fact the case of respondent No,2 was that the persons who polled 16 votes had come from outside and therefore, the decision given by the learned Election Tribunal was wrong by coming to the conclusion that by separating the challenged votes and putting them in separate packet, the secrecy of the ballot has been violated, therefore, he submitted that re-polling should have been ordered in Ward No,10 instead of electing respondent No,2 as returned candidate. On the other hand, the learned counsel for respondent No,2 took us through Rules 32, 33, 34, 37, 39 (E) of the N.-W.F.P. Local Councils Election Rules, 1979, and submitted that according to Rule 33(2) only the "Tendered Ballot Papers" shall be kept in a separate packet, instead of being placed in the ballot box and shall not be included in the count by the Presiding Officer. He further submitted that this condition is not imposed on "challenged votes". The only condition available under sub-rule (4) of Rule 34, ibid, is that the challenged votes list shall be prepared in Form IX. He further submitted that if we look at Form IX, then in column 8 of the said form the Presiding Officer of the Polling Station is required, after noting serial number of challenged ballot paper, name of voters etc., to pass order on each challenged vote but, according to the learned counsel, there is no order on Ex.C.W.1/DX-2 in column No,8 by the Presiding Officer. He, therefore, submitted that the challenged votes were correctly excluded and according to Section 39-I of the North-West Frontier Province Local Government Ordinance, 1979 (Ordinance-IV of 1979) if there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Election Tribunal shall draw a lot in respect of such candidates and the candidate on whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected. The learned counsel for respondent No,2 submitted that as the petitioner and respondent No,2 had equal votes by excluding the challenged votes, therefore, the decision was made by draw of lot as a result of which respondent No,2 was declared as returned candidate. Thus, the writ petition being without force, may be dismissed.
9. After hearing the parties and going through the record and the relevant rules, we have come to the conclusion that it is a fit case to be remanded to the Election Tribunal for taking further evidence with regard to the challenged votes and decide the case afresh in accordance with law after giving due opportunity to both the parties to produce their respective evidence, for the following reasons.
10. No doubt, regarding "the tendered ballot paper" under sub-rule (2) of Rule 33, ibid, the condition is there that it shall not be placed in the ballot box but should be placed in a separate packet but this condition is not attached to "challenged votes" as we find under Rule 34, ibid. However, under sub-rule (4) of Rule 34 mentioned above, a list of the challenged votes shall be prepared in Form IX and there is a column in Form IX i.e, column No,8 where the Presiding Officer is required to pass order on each challenged vote but as stated above, no such order was passed by the Presiding Officer. Under Rule 38, ibid, the Presiding Officer after obtaining the result of the count or draw of the lot under Rule 37, will declare the result. Under Rule 39, ibid, the Presiding Officer after declaring the result shall enclose and seal into separate packets in such manner as the Authority may direct (a b c d (c) the tendered ballot papers, f g h (i) the tendered votes list; and (j) the challenged votes list (underlining is mine). The above will show that under clause (e) of Rule 39, ibid, the words used are "the tendered ballot papers" whereas under clauses (i) and (j) of the said Rule, the words are; "the tendered votes list and the challenged votes list". The difference is that under clause (e) only the tendered ballot papers are to be sealed in a packet whereas regarding the challenged votes, the votes list is to be given and not the papers. We agree that the position with regard to the challenged votes is not clear under Rule 34 of the said Rules as we find with regard to tendered ballot paper where it has been specifically said that it should be sealed in a separate packet and should not be placed in the ballot box and should not be included in the count by the Presiding Officer but if we compare with its analogous law which is called 'The Representation of the People Act 1976', subsection (3) of Section 35 lays down as follows:- "A ballot paper issued under subsection (1) shall, after it has been marked and folded by the elector, be placed in the same condition in a separate packet bearing the label "Challenged Ballot Papers", instead of being placed in the ballot box."
' From the above; it will be clear that if the challenged votes are put in a ballot box, then, subsequently it will not be possible to separate it from the other ballot papers because it does not contain any mark or the serial number as is available on the counterfoil, therefore, under the Scheme of Things, the challenged votes should be placed in a separate scaled packet. For the above reasons, we do not agree with the above contention raised by the learned counsel for respondent No,2.
11. Now, we come to the other important question which needs some elaboration on our part. Sub- Rule (4) of Rule 34, ibid, says that the challenged votes list shall be prepared in Form IX and in column No,8 of the said form it is recorded that there should be order of the Presiding Officer but we do not find after examining the record that there is any order of the Presiding Officer on each challenged vote. When the Presiding Officer leaves it without passing any order, then the burden shifts to the Election Tribunal which should record evidence in respect of each challenged vote of the parties and then decide whether the challenged vote is a valid vote or not and if it comes to the conclusion that the challenged vote is a valid one and the person who has cast the vote is available, his address is correct, he is in possession of the identity card, then this vote or these votes will be counted towards the respective candidates and after doing so, the Tribunal will be in a clear position as to which of the candidates is having more votes or equal votes. Then after giving its decision on the challenged votes, the Election Tribunal will be in a position to pass the final order according to law.
12. For the foregoing reasons, we accept this writ petition, set aside the impugned order and remand the case to the Election Tribunal for decision afresh in accordance with law after giving due opportunity to both the parties to produce their respective evidence with regard to the challenged votes in the light of the above observations made by us. There shall be no order as to costs.